Bukenya v Nakamya & 3 Others (Miscellaneous Application 68 of 2024) [2024] UGHC 914 (3 September 2024)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KIBOGA

## **MISCELLANEOUS APPLICATION NO. 068 OF 2024**

## (Arising from civil appeal No.18 of 2024 (formerly Mubende Civil Appeal No. 9 of 2017)) (Also arising from Kiboga civil suit no. 15/2015)

BUKENYA RONALD ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. NAKAMYA FEDERESI - 2. SEBWAMI ROGERS - 3. NKANJI SOLOMON - 4. MWESIGYE ANNET

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# **BEFORE: HON. MR. JUSTICE KAREMANI JAMSON. K**

#### **RULING**

### **Introduction**

This application is brought by notice of motion under Section 98 of the Civil Procedure Act, Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules and Article 126(2)(e) of the Constitution of Uganda, 1995 as amended for orders that;

a) stay of execution of orders and decree in Civil Appeal No. 9 of 2017 (now Kiboga civil appeal no. 0018/2024) dated 2<sup>nd</sup> November, 2022 and any taxed costs therein be issued with regard to recovery of taxed costs, eviction of tenants and demolition of the house on the suit plot.

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b) Costs of the application be provided for.

#### Grounds

The grounds of this application are in the Notice of Motion and affidavit in support sworn by Mr. Bukenya Ronald - the applicant but briefly they are that;

- 1. The applicant having been aggrieved and dissatisfied with the judgment, orders and decree of this Court in Civil Appeal no.9 of 2017 dated 2<sup>nd</sup> November 2022 which was delivered in the absence of both parties without notice, appealed to the Court of Appeal and a notice of appeal has been served onto the respondents. - 2. According to the copy of the judgment delivered by the learned trial judge in the main appeal above, it was a judgment of Luwero High Court not this honourable Court and as such the decree the respondents intent to execute has no valid judgment it arises from. - 3. The respondents are in advanced stages of evicting the applicant's tenants from his commercial house on the suit plot and causing its demolition which if not stayed shall implicit irreparable damage. - 4. The respondents intend to recover taxed costs by way of committing the applicant to civil prison which if not restrained is likely to render the appeal in Court of Appeal nugatory. - 5. The applicant has been advised by his advocates that any party's right of appeal is a right jealously protected by the law and it should not easily be done away with. - 6. Advised by the same advocates, courts have in different decisions granted the stay of execution based on a filed notice of appeal by the applicant alone even in the absence of an already existing appeal with or without an order for security for due performance of the decree.

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7. It is in the interest of substantive justice and to the prejudice of neither party herein if the application is granted.

The affidavit in reply is sworn by Mr. Nkanji Solomon the 3<sup>rd</sup> respondent on behalf of other respondents and denies each and every allegation of fact contained in the applicant's application on grounds that;

- 1. They have been advised by their lawyers that the application is irregular, lacks merit, incurably defective, frivolous, misconceived and an abuse of court process. - 2. Their lawyers have further advised that any judgment be it legal or illegal is binding on the parties. - 3. The applicant does not deny there being a judgment delivered by this court and from which arises a decree to be executed. - 4. They have been advised by their lawyers that for the fact that judgment was in their favor, nothing bars them from enjoying the fruits of their judgment by executing the decree. - 5. The respondents are already in total control of the suit property and the developments thereon of which granting the application will be to their detriment. - 6. The assumption that the demolition of a commercial house on the suit plot shall inflict upon the applicant irreparable damage is founded on speculations without any proof or legal basis. - 7. The applicant ought to deposit in this court security for due performance of the decree.

### **Representation**

The applicant was represented by M/S Alma Associated Advocates while the respondents were represented by M/S Walusimbi, Kankaka and co. Advocates. Both parties filed written submissions which I have considered in this ruling.

### The Law

Section 98 of the Civil Procedure Act cap 282 gives the High Court inherent powers to take decisions which are pertinent to the ends of justice and an order for stay of execution is such one. SEE: UJAGARSINGH-V-RUNDA COFFEE ESTATES LTD [1966] EA 263. An applicant seeking stay of execution must meet the conditions set out in Order 43 Rule 4 (3) of the Civil Procedure Rules. The conditions were espoused in the Supreme Court case of HON THEODORE SSEKIKUBO AND ORS -V-ATTORNEY GENERAL AND ORS CONSTITUTIONAL APPLICATION NO. 03 OF 2014, as stated in the case of AUPAL KOKAS WINFRED-V-AISU POPURAS HCM NO.052/2022.

These conditions are that:

- a) The applicant must show that he lodged a notice of appeal. - b) Substantial loss may result to the applicant unless the stay of execution is granted. - c) The application has been made without unreasonable delay. - d) The applicant has given security for due performance of the decree or order as may ultimately be binding upon him.

### Preliminary objection.

I note that counsel for the respondents in his written submissions raised an objection on whether this application is competent before this court. He stated that the instant

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application was filed on 22/11/2022 (I believe he meant 22/11/2023) and the same was endorsed by this court on the same day. The applicant did not serve the application until the 20/1/2024. That Order 5 Rule 1(2) of the Civil Procedure Rules provides as follows;

"service of summons issued under sub-rule 1 of this rule shall be effected within 21 days from the date of issue, except that the time may be extended on application to the court, made within fifteen days after the expiration of the twenty-one days showing sufficient reasons for the extension."

That in this application, the applicant served the application two months from the time the application was issued by Court. He never applied for any leave to have the time within which to serve the application extended. Therefore, the application was served out of time and is incompetent before this court.

Counsel for the applicant never responded to this objection.

I agree with counsel for the respondents' submission on the law relating to service under Order 5 Rule 1(2) of the Civil Procedure Rules.

Be as it may, upon careful perusal of the court record, on 23/01/2024 when the matter came up for hearing, counsel for the respondents prayed that the application be dismissed with costs on grounds of non-service as per Order 5 Rule 1(2) of the Civil Procedure Rules and the fact that there was no appeal. The court record shows that the matter was adjourned to 13/2/2024 to hear the said application for dismissal. On 13/2/2024 when the matter came up, counsel Walusimbi for the respondents stated that he was

abandoning his prayer for dismissal of the application and prayed that court allows him 30 minutes to agree with counsel for the applicant on how this application will be handled

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on merit. Upon agreement of both counsel, they were granted timelines within which to file submissions on the application.

Based on the above, it is my finding that counsel for the respondents abandoned his prayer for dismissal of the application on grounds of non-service during hearing therefore, he is estopped from bringing up the same objection now in his written submissions. Therefore, that preliminary objection is overruled.

I will now proceed to consider this application on its merits.

# Whether the applicant has lodged a notice of appeal.

The applicant in paragraph 2 of the affidavit in support of the application stated that upon being dissatisfied with the judgment, orders and decree in civil appeal no. 9 of 2017, he has since appealed to the Court of Appeal. He filed a notice of appeal to that effect.

Indeed, a notice of appeal was filed in this honorable court on $30/6/2023$ in which the applicant informed this court of his intention to appeal. This was not objected to by the respondents. This ground has been satisfied.

## Whether the applicant will suffer substantial loss.

The court of appeal in KYAMBOGO UNIVERSITY -V- PROFESSOR ISAIAH OMOLO NDIEGE CA NO.341 of 2013 expounded this ground as follows;

The applicant must prove that there is a serious or imminent threat of execution of i. the decree or the order and if the application is not granted, the appeal would be rendered nugatory.

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- That the appeal is not frivolous and has a likelihood of success. ii. - Refusal to grant the stay would inflict more hardship than it would avoid. iii

It is the position of the law that once an appeal is pending and there is a serious threat of execution before the hearing of the appeal, the court intervenes to serve the purpose of substantive justice. SEE: HWANG SUNG INDUSTRIES LTD -V- TAJDIN HUSSEIN & OTHERS SCC APPN NO. 19 OF 2008. The general rule is that courts should not order a stay where there is no evidence of an application for execution of a decree. See: BAGUMA PAUL T/A PANACHE ASSOCIATES -V- ENG. KARUMA KAGYINA MA NO. 460 OF 2020 (ARISING FROM CIVIL SUIT NO. 002 OF 2015 HIGH COURT CIVIL DIVISION KAMPALA CITED BY SSEKAANA MUSA J WHILE RELYING ON THE CASE OF ORIENT BANK LTD -V- ZAABWE & OTHERS MA NO. 19 OF2007.

The applicant stated in paragraph 5 of the affidavit in support that the respondents intend to recover from him taxed costs by way of committing him to civil prison however, no evidence has been furnished to that effect. Under such circumstances, the court would only be convinced if there is a formal application for execution that would show a clear indication of the respondents' intention of executing the decree. The applicant did not adduce any evidence to show that the respondent had indeed filed a notice to show cause why the applicant should not be committed to civil prison.

The above notwithstanding, it was the respondents' contention in paragraph 10 of the affidavit in reply that they are already in total control of the suit property and the developments thereon therefore, granting this application will be to their detriment.

This fact was not disputed by the applicant because there was no affidavit in rejoinder contesting the same. Further to note is that one of the orders by this honorable Court in civil suit $09/2017$ were that;

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'Bukenya Ronald is directed to voluntarily deliver vacant possession of the plot to Nakamya within sixty days from the date of this judgment. Upon failure to comply, Nakamya is at liberty to take out contempt proceedings.'

This implies that the applicant was expected to vacate the suit land within 60 days of delivering of judgment. I believe that it was from that order that the respondents took over possession of the suit land. This in a way implies that execution has already take place by the respondents taking over possession.

Therefore, to grant the stay of execution in this case would instead inflict more hardship than it would avoid as it would have an effect of evicting the respondents who have already taken possession.

It is my finding that the applicant has not proved that he will suffer substantial loss if this application is not granted.

# Whether the application has been made without unreasonable delay.

Whether delay is unreasonable will depend on the peculiar facts of each case. Delay must be assessed according to the circumstances of each case. The reckoning of time to determine if a delay is unreasonable begins at the time the decree or order is sealed and becomes enforceable. SEE: JUNACO (T) LTD AND OTHERS -V-DFCU BANK LIMITED HCMA NO. 0027/2023.

Judgment in civil suit no. 09/2017 whose decree this application seeks to stay was delivered on 2/11/2022. This application was filed on 22/11/2023 which is over a year later. The applicant did not give any explanation as to why it took him that long to file this application. The applicant upon being ordered to handover the suit land within two months, he ought to have immediately filed for an interim stay of execution if he so wished. Instead, he chose to sit on his rights and wake up after over a year to pray for

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stay of execution. The time taken to bring this application amounts to unreasonable delay on the part of the applicant.

In the case of BAGUMA PAUL T/A PANACHE ASSOCIATES -V- ENG. KARUMA KAGYINA HCMA NO. 460/2020; Hon. Justice Musa Ssekaana held that;

"While exercising the discretion conferred under the law of stay of execution, the court should duly consider that a party who has obtained a lawful decree is not deprived of the fruits of that decree except for good and cogent reasons. So long as the decree is not set aside by a competent court, it stands good and effective and should not be lightly dealt with so as to deprive the holder of the lawful decree of its fruits."

The court has got a duty to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not deprived of enjoying the fruits of his or her judgment.

Based on the above stated reasons it is my finding that the applicant has not made out convincing reasons for the grant of an order for stay of execution. This application therefore fails and is dismissed with costs to the respondents.

I so order. Wam KAREMANI JAMSON. K

**JUDGE** 3/09/2024